Kaur (Migration)

[2022] AATA 1852

Kaur (Migration) [2022] AATA 1852 (1 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Manjit Kaur

REPRESENTATIVE:  Mr Robby Singh Sawhney (MARN: 0964652)

CASE NUMBER:  2201865

HOME AFFAIRS REFERENCE(S):          BCC2021/110609

MEMBER:Kira Raif

DATE:1 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

·PIC 4005(1)(c ) for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

Statement made on 01 June 2022 at 9:12am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – health criteria – free from disease or condition likely to require health care or community services – opinion of medical officer of commonwealth taken as correct – decision made without hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cl 600.213(1), Schedule 4, criterion 4005(1)(c)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 February 2022 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 January 2021. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 600.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

5. Public interest criterion 4005(1)(a) and (b) require the applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community. Public interest criterion 4005(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

6. In determining whether a person meets PIC 4005(1)(a), (b) or (c) reg 2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements. Where an opinion of a MOC is required, the Tribunal must take it be correct: reg 2.25A(3).

   Is the applicant free from the relevant diseases or conditions?

7. The Tribunal has determined that  a MOC opinion is required. The primary decision record indicates that the delegate wrote to the applicant requesting her to undertake health checks. The applicant had not done so.

8. Electronic evidence before the Tribunal indicates that  the applicant has now completed the health checks and has been ‘cleared’. Accordingly, the Tribunal finds that  the applicant meets public interest criterion 4005(1)(c).

   Conclusion

9. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

   DECISION

10. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

    ·PIC 4005(1)(c) for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member